JANET H. RUEHLING, Employee/Appellant, v. SHAKOPEE 1997 LLC d/b/a CUB FOODS and SECURA INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 19, 2006

 

No. WC06-130

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the well-founded opinion of the employer and insurer's medical expert, supports the compensation judge's determination that the employee's work activities as a cashier were not a substantial contributing cause of her carpal tunnel syndrome.

 

Affirmed.

 

Determined by: Johnson, C.J., Wilson, J., and Pederson, J.

Compensation Judge: Cheryl LeClair-Sommer

 

Attorneys: Kent F. Spellman and Keith E. Sjodin, Melchert Hubert Sjodin, Waconia, MN, for the Appellant.  Nicole B. Surges, Erstad & Riemer, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that she did not sustain a Gillette-type^[1] personal injury on February 24, 2001.

 

BACKGROUND

 

Janet H. Ruehling, the employee, began working for Shakopee 1997 LLC d/b/a Cub Foods in September 1998.  The employee first worked in the pricing department, initially working five days a week and later four days a week.  In the pricing department, the employee tore price stickers off large sheets of paper and put them in the aisles of the Cub Foods Store.  The employee estimated she applied three to four thousand price tags each week.  Just before she left the pricing department, the employee=s hours were reduced to 15 hours per week.

 

In June or July 2003, the employee was transferred to a cashier position.  The employee worked 15 hours a week in three, five-hour shifts with one 15 minute break each shift.  The employee usually worked in the morning and did not work past 2:30 p.m.  In general, the bulk of the sales at the food store were after 1:00 p.m. and typically the orders were smaller sized in the morning.

 

Customers brought food items to the employee=s station where they were placed on a conveyor belt that brought the product to the employee.  As the cashier, the employee picked up each item with her right hand, transferred it to her left hand, pulled the item across a scanner to record the price and then replaced the item on the conveyor.  The conveyor belt and scanner were at approximately waist height.  The employee also manually keyed product and menu codes on occasion.  The employee did not bag food for the customers unless requested by a disabled customer.  When business at the store was slow, the employee cleaned belts, dusted and swept floors.

 

In September 1990, the employee saw Dr. Albert Salazar complaining of left arm tenderness.  The employee then saw a physical therapist to whom she complained of left elbow pain with gripping and lifting activities and right wrist pain with symptoms present since January 1990.  The physical therapist diagnosed left lateral epicondylitis and commenced a regimen of physical therapy.  An EMG of the right arm in December 1990 was consistent with right carpal tunnel syndrome.  Dr. Salazar referred the employee to Dr. Stephen Barron who diagnosed right carpal tunnel syndrome and recommended surgery.  In July 1994, Dr. Paul Cederberg performed a right carpal tunnel release.

 

In January 2001, Dr. David Zoschke examined the employee for arthralgias and a low positive rheumatoid factor.  The employee stated she had developed pain and burning in her left shoulder and elbow over the past year.  The doctor noted the employee was diagnosed with diabetes three years previously.  Dr. Zoschke diagnosed acute left shoulder bursitis as part of multiple areas of soft tissue inflammation due to diabetes.  In December 2001, the employee commenced physical therapy for neck and upper back pain.  The employee reported to the therapist pain in the upper cervical region down into her shoulder blade area with radiating symptoms down her left arm into her hand.  The employee described the pain as throbbing with a tingling sensation in her left arm and hand.  The employee discontinued physical therapy after two visits.

 

The employee testified she had no difficulties with her arms, wrists, or shoulders when she started working as a cashier in 2003.  After working as a cashier for four or five weeks, the employee stated she began to experience tingling and numbness in her left wrist and hand with throbbing at night.  The employee saw Dr. Kinga Kocsis on February 24, 2004, complaining of left hand symptoms including pain and numbness in the hand and in the median nerve distribution.  The doctor diagnosed carpal tunnel syndrome and prescribed a wrist splint and physical therapy.  In April 2004, Dr. Kocsis noted the physical therapy was helpful in reducing the pain but the employee continued to complain of numbness especially at the end of her work day.  In January 2005, Dr. Kocsis noted the employee=s symptoms were worsening and she recommended an EMG that demonstrated moderate to severe left upper extremity carpal tunnel syndrome.  Dr. Kocsis referred the employee to Dr. Mark Gregerson, an orthopedic surgeon, whom she saw in February 2005.  Dr. Gregerson diagnosed carpal tunnel syndrome and recommended a carpal tunnel release.

 

Dr. Richard A. Lemon, an orthopedic surgeon, examined the employee on March 8, 2005, at the request of the employer and insurer.  The doctor obtained a history from the employee, reviewed the employee=s medical records and performed a physical examination.  Dr. Lemon diagnosed pre-existing left carpal tunnel syndrome which the doctor concluded was unrelated to the employee=s work activities for the employer.  The doctor cited numerous articles in orthopedic literature which he stated clearly documented that carpal tunnel syndrome is, in general, not a work-related condition.  He further stated there was no evidence that work as a cashier would cause or aggravate carpal tunnel syndrome.  Dr. Lemon noted the employee had an identical problem in her right arm which was corrected surgically thirteen years previously.  Dr. Lemon stated carpal tunnel syndrome is a normal part of the aging process which, in the employee=s case, was aggravated by her age, obesity and diabetics mellitus.

 

In a September 2005 report, Dr. Gregerson responded,

 

I reviewed Dr. Lemon=s March 8, 2005 report, as well as my previous notes regarding the patient.

 

It is my opinion, with a reasonable degree of medial certainty, that Ms. Ruehling=s left sided carpal tunnel syndrome was caused or substantially contributed to by her work as a cashier at Shakopee Cub Foods.  Carpal tunnel syndrome is a very common condition, very commonly seen in people that do repetitive activities with the upper extremities.  There is no confusion in the literature with regard to this.

 

(Pet. Ex. A.)

 

The employee filed a claim petition seeking benefits as a result of a personal injury in the nature of left carpal tunnel syndrome culminating on or about February 24, 2004.  In a Findings and Order, the compensation judge found the employee=s work activities for the employer were not a substantial contributing cause of her carpal tunnel syndrome and denied her claim.  The employee appeals.

 

DECISION

 

The employee contends the compensation judge=s finding that the employee=s work activities were not a substantial contributing cause to the development of her left-sided carpal tunnel syndrome is unsupported by substantial evidence.  The employee testified she had no problems with her left hand until she began working as a cashier for the employer.  She stated the job required her to repeatedly use her left hand to lift and push items along a conveyor belt.  The employee further testified her symptoms diminished after the end of the work day and when she took vacation but returned at work.  Dr. Gregerson unequivocally related the employee=s left carpal tunnel syndrome to her work activities and concluded the employee sustained a Gillette injury.  The employee=s testimony in combination with Dr. Gregerson=s opinions, the appellant asserts, compels the finding that the carpal tunnel syndrome is work related.  We disagree.

 

Certainly, there is evidence which would support a result contrary to the conclusion reached by the compensation judge.  The issue for this court, however, is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge.  It is the role of this court to determine whether the findings of fact and order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.  Minn. Stat. ' 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

Dr. Lemon opined the employee=s work activities as a cashier were not a substantial contributing cause of the employee=s carpal tunnel syndrome.  The compensation judge found the opinions of Dr. Lemon more persuasive than those of Dr. Gregerson.  It is the function of the compensation judge to resolve conflicts in expert medical testimony.  See, Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The competency of a medical expert to provide an expert opinion depends both upon the extent of the scientific knowledge of the witness and the witness=s practical experience with the matter which is the subject of the expert opinion.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).  Dr. Lemon obtained a history from the employee, reviewed the relevant medical records and performed a physical examination.  As a general rule, this level of knowledge is sufficient to afford foundation for the opinion of the medical expert.  See, e.g., Caizzo v. McDonald=s, 65 W.C.D. 378 (W.C.C.A. 2005).

 

The appellant argues the opinions of Dr. Lemon should be disregarded because the thesis advocated by the doctor, that repetitive activities do not cause carpal tunnel syndrome, is contrary to established case law that recognizes carpal tunnel syndrome as a personal injury.  See, e.g., Jensen v. Kronick=s Floor Covering Serv., 245 N.W.2d 230, 29 W.C.D. 69 (Minn. 1976).  Further, the employee argues, such a thesis is contrary to a decision by this court that a cashier=s work duties can cause carpal tunnel syndrome.  See, Fossey v. K-Mart Corp., slip op. (W.C.C.A. Aug. 21, 2002).  Accordingly, the appellant contends the compensation judge improperly relied upon the opinions of Dr. Lemon.  We are not persuaded.

 

In Linnell v. City of St. Louis Park, 305 N.W.2d 599, 33 W.C.D. 602 (Minn. 1981), the supreme court held the statutory presumption contained in Minn. Stat. ' 176.011, subd. 15,^[2] cannot be rebutted by a medical opinion denying the correctness of the thesis accepted by the legislature in enacting the statute.  We are not here, however, dealing with a statutory presumption but rather a question of whether particular work activities may cause carpal tunnel syndrome.  Dr. Lemon did not deny the concept of a Gillette injury or deny that certain work activities may cause carpal tunnel syndrome.  Rather, the doctor opined there was no evidence the employee=s work duties as a cashier caused or aggravated her carpal tunnel syndrome.  The doctrine of the Linnell case does not apply here.  The opinions of Dr. Lemon were adequately founded and the compensation judge could reasonably rely upon them.

 

In a memorandum, the compensation judge explained why she chose the opinions of Dr. Lemon over those of Dr. Gregerson.  The judge stated,

 

Dr. Gregerson concluded in the report stamped September 28, 2005 that the left-sided carpal tunnel syndrome was caused or substantially contributed by the work as a cashier due to the repetitive activities with the upper extremities.  It is unclear whether Dr. Gregerson understood the prior medical records contain a reference to bilateral carpal tunnel syndrome in the early 1990's.  The medical records and report of Dr. Gregerson lack confirmation of his understanding of the limited work hours or the type and frequency of the movement of the left hand while performing work activities.  Dr. Gregerson did not review a job description or comment on the various studies described by Dr. Lemon.  He further did not comment on the potential impact of diabetes, obesity, or age upon carpal tunnel syndrome.

 

The appellant argues the judge=s conclusion that Dr. Gregerson lacked understanding of the nature and extent of the work duties is erroneous since Dr. Gregerson reviewed Dr. Lemon=s report.  Further, the appellant contends no reference or significance should be attributed to medical journal articles which Dr. Gregerson did not have the opportunity to review.  Accordingly, the appellant asks this court to reverse the compensation judge=s adoption of Dr. Lemon=s opinions.  We decline to do so.

 

Dr. Lemon reviewed the job description for a cashier and went on to note,  AI am very familiar with the job of a cashier as I was a cashier for one of my four summers of employment at an A & P grocery store during high school and college.@  (Resp. Ex. 1.)  While Dr. Gregerson did review Dr. Lemon=s report, Dr. Gregerson did not enumerate the employee=s job duties or specifically outline the frequency of the employee=s left hand movements.  Neither did Dr. Gregerson comment on the impact of the employee=s diabetes on her carpal tunnel syndrome.  While Dr. Gregerson=s opinions were certainly adequately founded, ultimately, the question becomes which medical expert the compensation judge found the more persuasive.  In Golob v. Buckingham Hotel, the Minnesota Supreme Court stated,

 

Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and discard the opinion of the other.  The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.

 

244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955) quoted in Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 478-79, 42 W.C.D. 1118, 1123-24 (Minn. 1990).

 

The compensation judge adopted the opinions of Dr. Lemon.  The doctors= opinions were adequately founded and the compensation judge could reasonably rely upon them.  Substantial evidence supports the compensation judge=s decision, accordingly, the decision of the compensation judge must be affirmed.